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Analysis: Tour operators will lobby to 'close off loopholes' in Package Travel Directive

Concerns remain that the new directive offers 'wiggle room' if it is left untouched. Ian Taylor reports from the Lexis Nexis Travel Law Conference in London last week

Europe’s major tour operators will lobby Brussels to close off escape routes to the extension of package travel rules.

Lawyers representing Tui Travel and Thomas Cook welcomed the Package Travel Directive proposals, published in July, but made clear they want them tightened.

Tui Travel UK general counsel Mike Bowers told a travel and tourism law conference in London last week the proposals would mean “the vast majority of arrangements will be a package”.

Andy Cooper, Thomas Cook director of government and external affairs, agreed. He said: “There will be a hell of a lot of people caught under the new definition of a package.”

Bowers told the conference of travel industry lawyers: “When the PTD proposal came out, everyone said it seemed good.

“Either the European Commission has been incredibly clever or people have read it in entirely different ways.”

He outlined the proposals for two new types of protected bookings – customised packages and assisted travel arrangements (ATAs) – and welcomed the former. But he suggested the latter was no different from other holiday bookings, saying: “We hold the view that an ATA is a holiday. It will cause confusion.”

Cooper agreed, saying: “I remain at a loss as to what an ATA will look like and how it will work in practice. The EC has either not thought this through or is trying to be incredibly clever.”

Travlaw senior partner Stephen Mason also agreed. He said: “There is little scope for ATAs to bite on anything in the real world if the definitions stay as they are.”

Bowers argued: “You can see where the EC is aiming, but when you get to the wording it is difficult to pin down. There are an enormous number of technical difficulties.”

Cooper said: “It’s clear the EC wants to extend the scope of protection, if you read the recitals and explanatory notes to the directive. The big task will be to get some of the wording of recitals into the directive.”

Bowers agreed: “Both the explanatory wording and the preamble are clear: the intention is to bring in anything a customer believes is a holiday.”

But Cooper added: “At the moment, the directive gives wiggle room. There has been a certain amount of compromise. There have been fudges to get something on the table.

“What concerns me is that people will find ways around the directive. It’s virtually impossible to make it future-proof.”

Keystone Law consultant Trevor Sears said: “It is inevitable there will be shades of distinction. That is what the courts are for.”

QC Howard Stevens warned: “It will be open to an awful lot of challenges. It will be for the courts to interpret.”

Cooper said: “If we’re saying we have to leave it to the courts, that is saying it’s poor drafting.”

However, he went on: “Putting aside the ATA, the PTD would probably not be that different if I had written it.”

He claimed the directive was what the UK industry had argued for in Brussels over the past five years. “If left untouched and implemented tomorrow we could probably live with it,” said Cooper. “My concern is that it won’t be left untouched and it will take four to five years.”

Bowers said: “The PTD is going to mean a great deal of work for lawyers.”

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